R v Gibbs; Ex parte - [2021] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gibbs; Ex parte Attorney-General (Qld) [2021] QCA 191

PARTIES:

R
v
GIBBS, Shane Trevor
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 172 of 2021
DC No 513 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 18 June 2021 (Dann DCJ)

DELIVERED ON:

Date of Order: 17 August 2021
Date of Publication of Reasons: 7 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2021

JUDGES:

Sofronoff P, Mullins JA and Crow J

ORDER:

Order delivered: 17 August 2021

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted after trial of one count of suffocation in a domestic setting (domestic violence offence) and one count of choking in a domestic setting (domestic violence offence) – where the respondent was sentenced for each count to imprisonment for a period of three years with an immediate fixed parole release date – where the appellant did not challenge any of the findings made by the sentencing judge – where the sentencing judge balanced the factors relevant for sentencing for violent offences with the mitigating factors that were personal to the respondent – whether the sentences imposed were manifestly inadequate

Criminal Code (Qld), s 315A

R v Green; Ex parte Attorney-General (Qld)[2021] QCA 153, cited
R v HBZ (2020) 4 QR 171; [2020] QCA 73, considered
R v Luxford[2020] QCA 272, considered
R v MCW [2019] 2 Qd R 344; [2018] QCA 241, considered
R v Yarwood (2011) 220 A Crim R 97; [2011] QCA 367, cited

COUNSEL:

P J McCarthy QC, with M J Hynes, for the appellant
M J Copley QC, with D A Funch, for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Howden Saggers Lawyers for the respondent

THE COURT: The respondent was convicted after trial before a jury in the District Court between 22 and 26 March 2021 of one count of suffocation in a domestic setting (domestic violence offence) and one count of choking in a domestic setting (domestic violence offence). He was acquitted on a third count on the same indictment of assault occasioning bodily harm (domestic violence offence). The complainant for all three counts was the respondent’s wife. The sentencing proceeded on 18 June 2021 in respect of the two counts of which the respondent was found guilty and a summary charge of contravention of domestic violence order committed at the same time as the two counts of which he was found guilty. For each of the two counts he was sentenced to imprisonment for a period of three years and given a fixed parole release date of the date of the sentence. The respondent was also ordered to pay compensation of $5,000 to the Registrar of the District Court within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gibbs; Ex parte

Details

AGLC: R v Gibbs; Ex parte [2021] QCA 191
Case: [2021] QCA 191
Decision Date: 7 September 2021

CaseChat Overview and Summary

The Attorney-General appeals against the sentence imposed on the respondent, who was convicted on one count of suffocation and one count of choking in a domestic setting. The respondent was sentenced to imprisonment for three years on each count, with an immediate fixed parole release date. The Attorney-General argues that the sentence is manifestly inadequate.

The appeal raises the question of whether the sentence imposed by the sentencing judge was manifestly inadequate, considering the nature and circumstances of the offences and the respondent's personal circumstances. The respondent did not challenge any of the findings made by the sentencing judge, and the sentencing judge balanced the factors relevant for sentencing for violent offences with the mitigating factors that were personal to the respondent.

The court considered the severity of the offences, the impact on the complainant, and the respondent's personal circumstances, including his military service and medical conditions. The court held that the sentence imposed was not manifestly inadequate, and the appeal was dismissed.

No further orders were made.

Orders

Orders of the court

Order delivered: 17 August 2021

Appeal dismissed.

Background

Background to the litigation

The Attorney-General appeals against the sentence for the two counts on the basis the sentence is manifestly inadequate.The facts of the offences The complainant had checked the respondent’s phone in the middle of the night and accused the respondent of being unfaithful. During the argument that ensued, the complainant asked the respondent to leave the home and then said she was calling the police. The complainant started to dial, but did not know if she got through as the respondent came at the complainant “hard and fast”. The complainant was then on the floor on her stomach and count 1 was committed when the respondent had his hand over her mouth and nose and she could not breathe. The complainant felt her tooth pop or break or it was hurting. The complainant grabbed and squeezed the respondent’s testicles and the respondent let the complainant go. As she tried to get up and said something like “no”, “stop” or “help”, she felt a massive force, as the respondent was on her back and she hit the ground with him on her back. The complainant described feeling “10 out of 10 pressure on her throat” and remembered her tongue coming up in her mouth. This part of the incident constituted count 2. The complainant wet herself and saw their son’s feet and his pyjama pants and her vision then “blurred out”. The complainant could not breathe until she was lifting herself up again off the floor and was unsure, if she blacked out or not. The 000 call made by the complainant from her phone had connected and captured the sounds of a struggle and a shortness of breath with muffled cries. The 000 call also confirmed that the son of the complainant and the respondent was nearby and witnessed the incident. Counts 1 and 2 were committed in quick succession in the complainant’s bedroom. The complainant’s dentures were found in her bed. When the complainant was examined in hospital shortly after the incident, she had bilateral periorbital petechiae, swollen eyelids, tenderness of her forehead and temples and swelling on the front of the neck and under the jaw and chin. Expert medical evidence was to the effect that these symptoms were consistent with non-fatal strangulation.The respondent’s antecedents The respondent was born in 1971 and was 47 years old when he committed the offences. He had been in a relationship with the complainant for about 13 years and they had been married for about seven years at the time of the offending. There is one son of the marriage who was five years old at the time of the offending. At the age of 23 years, the respondent joined the army. He had 20 years in the Special Air Service Regiment (SAS) and for 22 years was a sniper. The respondent did multiple tours of duty in international areas of conflict, including Iraq, Afghanistan and East Timor. He was injured in an explosion in 2007 in Afghanistan and shot in battle in September 2008 which resulted in life threatening injuries. The injuries were described as thoracoabdominal gunshot wound, penetrating liver injury, penetrating diaphragm injury, two colotomies, penetrating splenic injury and open abdomen. He required 10 weeks in hospital and suffered long term damage to multiple organs, including paralysis of his right hemidiaphragm which was permanent and significantly impaired his cardiorespiratory function. The respondent returned to active service in Afghanistan in 2011. The respondent was eventually diagnosed in 2014 as suffering from post-traumatic stress disorder (PTSD), was medically discharged from the army in 2015 and receives a full military disability pension.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Gibbs; Ex parte Attorney-General (Qld) [2021] QCA 191
PARTIES:	R v GIBBS, Shane Trevor (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 172 of 2021 DC No 513 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 18 June 2021 (Dann DCJ)
DELIVERED ON:	Date of Order: 17 August 2021 Date of Publication of Reasons: 7 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 August 2021
JUDGES:	Sofronoff P, Mullins JA and Crow J
ORDER:	Order delivered: 17 August 2021 Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted after trial of one count of suffocation in a domestic setting (domestic violence offence) and one count of choking in a domestic setting (domestic violence offence) – where the respondent was sentenced for each count to imprisonment for a period of three years with an immediate fixed parole release date – where the appellant did not challenge any of the findings made by the sentencing judge – where the sentencing judge balanced the factors relevant for sentencing for violent offences with the mitigating factors that were personal to the respondent – whether the sentences imposed were manifestly inadequate Criminal Code (Qld), s 315A R v Green; Ex parte Attorney-General (Qld)[2021] QCA 153, cited R v HBZ (2020) 4 QR 171; [2020] QCA 73, considered R v Luxford[2020] QCA 272, considered R v MCW [2019] 2 Qd R 344; [2018] QCA 241, considered R v Yarwood (2011) 220 A Crim R 97; [2011] QCA 367, cited
COUNSEL:	P J McCarthy QC, with M J Hynes, for the appellant M J Copley QC, with D A Funch, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Howden Saggers Lawyers for the respondent